The claimant was employed from 5th December 2014 until his dismissal on 10th August 2018 as a Shepherd.  The issue arose from an event on 26th July 2018 when the claimant took a dead lamb, skinning it and removing its head before taking it to the cold store.  The Farm Manager was present when the claimant placed the lamb into the cold store.   The following day the claimant was suspended on full pay and following a disciplinary hearing he was dismissed with immediate effect.  The reason for the dismissal was gross misconduct on the basis of the illegal and unauthorised butchering of the lamb owned by the respondent.  There was also an allegation of the potential theft of the lamb – with the claimant citing that as he never removed the lamb, there could not have been a theft.   here was also mention of the breach of trust and confidence yet the Tribunal stated that this was not stated in clear and unequivocal terms at the time of the dismissal. 

A complicating factor in this case was that the claimant had raised grievances in relation to some other employees largely based upon religious discrimination.   He felt that the respondent had placed too great a reliance on statements made by those employees in coming to their decision to dismiss. The principal issue that the Tribunal had to deal with was whether the decision to summarily dismiss fell within the band of reasonable responses.  To this end, the Tribunal undertook an extensive analysis of the cases that have explained the remit of the band of reasonable responses test.  

In examining the facts against whether the reason outlined by the respondent was a potentially fair one it was outlined that the gross misconduct went to the nature of the disposal of the fallen stock rather than any allegation of theft.   The allegation arose from the opinion that the claimant was planning to take the meat home.  Accordingly, the Tribunal found that any allegation of theft was not well founded.  In looking at the failure to dispose of the fallen stock as gross misconduct it was held by the Tribunal that it lacked the character of being gross misconduct.  This was on the basis that it did not amount to ‘very considerable negligence’ and that it had not been repeated over a period of time.  The act was not deliberate or intentional; instead, it could be described as impulsive with the intention to be avoid wasting meat.  Accordingly, it was held without the allegation of theft the Tribunal was not satisfied that a reasonable employer would have viewed the claimant’s actions as capable of giving rise to a terminal loss of trust and confidence or of being gross misconduct.  Therefore, there was a finding of unfair dismissal and compensation award of £8585.00 was made.

Practical Lessons

This case demonstrates the importance in ensuring clarity in outlining the decision for dismissal.  There was confusion over the extent to which the theft allegation had been used to found gross misconduct as well as the use of breach of trust and confidence as the reason for the dismissal.  This overarching confusion alongside the theft allegation not being upheld meant that the conduct was not such that it instantly led to gross misconduct considering the clean record of the claimant.  The Tribunal is to be commended in its thorough analysis of the particular aspects of unfair dismissal and works as a good aide-mémoire for certain aspects such as the ‘band of reasonable responses’ test.

NI Tribunal decisions are available on the OITFET website: http://www.employmenttribunalsni.co.uk/       

For an alternative view of this case from the Barrister instructed on behalf of the Claimant, Emma McIlveen BL, please click HERE. Emma’s review concentrates on the use of a Registered Intermediary for the first time in an Industrial Tribunal in Northern Ireland and the reasonable adjustments made to ensure that the Claimant could fully engage with the Tribunal process.”